Bharatiya Sakshya Adhiniyam Mandates Certificate for All Electronic Evidence: Stricter Than IEA

The Bharatiya Sakshya Adhiniyam, 2023 (BSA) has fundamentally reshaped the landscape of digital evidence in Indian courts, replacing the long-troubled Section 65B of the Indian Evidence Act, 1872 (IEA) with a far more rigorous and prescriptive regime. Under the BSA, every piece of electronic evidence —whether produced as an original or a computer output—must now be accompanied by a statutorily mandated certificate, verified by an expert and fortified with cryptographic hash values . This marks a decisive shift from the IEA's permissive and often litigated framework, closing loopholes that had consumed judicial energy for nearly two decades.

The Long-Standing Controversy Over the Certificate

The requirement of a certificate under the IEA had been a persistent source of judicial discord. In State (NCT of Delhi) v. Navjot Sandhu ( 2005 ), the Supreme Court allowed secondary evidence of electronic records without a certificate. That position was overruled in Anvar P.V. v. P.K. Basheer ( 2014 ), where a three-judge bench held the certificate under Section 65B(4) to be a mandatory condition precedent . Confusion returned in Shafhi Mohammad v. State of Himachal Pradesh ( 2018 ), which carved out an exception for parties not in possession of the device. Finally, Arjun Panditrao Khotkar v. Kailash Kushanrao Gorantyal ( 2020 ) restored the Anvar rule, clarifying that the certificate is indispensable and that its absence can be excused only in rare circumstances.

The BSA was drafted with this "uneven record in mind," as the source notes, "which is why Parliament chose to spell things out and leave judges far less room to fill the gaps on their own." The result is a statutory framework that codifies the hard-won jurisprudence and adds layers of forensic rigour .

Section 63: A Codified Solution

Section 63 of the BSA directly replaces Section 65B of the IEA and introduces four critical changes. First, the language shifts from the permissive "may" to the mandatory "shall"—the certificate "shall" be submitted, removing any interpretive ambiguity that earlier courts had exploited. Second, the BSA requires contemporaneous filing : the certificate must be submitted along with the electronic record at each instance it is tendered for admission, settling the question of late-stage filings. Third, the BSA standardises the certificate's form through a detailed Schedule, replacing the previously format-free requirement with specific fields for device particulars, signatory details, and technical identifiers. Fourth, and most significantly, the BSA extends the certificate requirement to all electronic records. Under the IEA, an original electronic record produced directly from the device could be admitted without a certificate; only computer outputs required it. The BSA, through Section 61 read with Section 63 , provides that every electronic or digital record shall have legal effect only "subject to section 63," thereby making the certificate a universal precondition. As the source explains, "the concession in Arjun Panditrao Khotkar , which had permitted an original electronic record to be admitted without a certificate, does not survive under the BSA."

Dual Certification and Forensic Rigour

The most ambitious reform is the shift from a single signatory to dual certification . The BSA's Schedule splits the certificate into two parts: Part A, completed by the party or person in charge of the device, and Part B, completed by an expert. Two signatures are now required, and the expert's involvement is no longer optional. Part B demands that the expert record the hash value of the electronic record , expressly recognising algorithms such as MD5, SHA-1, and SHA-256. Part A requires detailed device particulars, including IMEI numbers, MAC addresses, UID/UIN, or Cloud IDs as appropriate.

This infusion of forensic science into the evidentiary process is designed to make tampering or fabrication easier to detect. However, the source raises a pressing question: who qualifies as an "expert" under Part B? Section 39(2) of the BSA deems the Examiner of Electronic Evidence notified under Section 79A of the Information Technology Act, 2000 , to be an expert, but only a handful of bodies have been notified. The source suggests a practical view: "expert" under Section 63(4) should be understood through Section 39(1) , which asks only that a person be "specially skilled" in the relevant field—a standard that could include a local mobile-phone engineer or an experienced computer network professional.

Practical Implications and Challenges

The BSA's tighter regime raises the procedural burden significantly. A contemporaneous, dual-signed, expert-verified certificate is a demanding instrument, and the requirement bears most heavily on the party who does not control the device that produced the record—precisely the access-to-justice concern that Shafhi Mohammad had sought to address. The framework also assumes a level of technical competence that legal practitioners, certifying agencies, and judicial officers may not uniformly possess. As the source aptly notes, "the change that BSA wants to achieve will ultimately depend on investment in the people and the infrastructure that must give it effect."

For legal professionals, the practical implications are immediate. Prosecutors and defence lawyers must now ensure that every electronic record —emails, CCTV footage, WhatsApp chats, call data records—is accompanied by a certificate that complies strictly with the Schedule. Failure to do so may result in exclusion of the evidence, a consequence that could be fatal in cases heavily reliant on digital proof. The courts, in turn, will need to develop expertise in evaluating hash values and device identifiers, tasks that were previously left to the discretion of the parties.

Conclusion

The BSA's treatment of the certificate is evolutionary rather than revolutionary. It codifies two decades of contested jurisprudence, tightens the language, standardises the form, and embeds forensic rigour through dual certification and mandatory hashing. Yet the promise of Section 63 rests on reforms that lie outside the Adhiniyam itself: structured and continuing training for judges, prosecutors, and advocates; the accreditation and expansion of forensic expertise beyond a handful of notified bodies; and the modernisation of court and laboratory infrastructure so that electronic evidence can be received, preserved, and appreciated as the law now requires. The BSA has set a higher bar; the legal community must now rise to meet it.